Family rights to immovable property after death of the owner by Trust and Estates
December 2, 2019
How long can you wait to call up a performance guarantee payable on demand? by Marieke du Toit
December 2, 2019

Speeding in private residential estates: Are penalties enforceable? by Johanei Borstlap

In Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh & others (323/2018) [2019] ZASCA 30 (28 March 2019) considered an appeal against a judgment of the High Court of KwaZulu Natal which held that the enforcement of speed limits by a home owners’ association against its members was unlawful.

The Appellant is the Mount Edgecombe Country Club Estate Management Association II (RF) NPC (“the Association”), a non-profit company and an association of homeowners. In terms of the Association’s Memorandum of Incorporation (“MOI”), membership of the Association is obligatory for all owners of residential property situated within the Mount Edgecombe Country Club Estate Two (“the Estate”). The First Respondent, Mr N Singh, and the Second Respondent, Mr MM Ramandh, are residents and property owners within the Estate.

Clause 20.1 of the MOI sets the speed limit on the roads within the Estate at 40km/h. The First Respondent’s daughter was issued with three contravention notices for exceeding the speed limit, imposing a penalty of R1,500.00 for each contravention. The amounts were deemed by the conduct rules to be part of the levy due by the owner and were debited to the First Respondent’s account accordingly. The Association deactivated the access cards and biometric access of the First Respondent and members of his household after he refused to pay.

Upon application by the First Respondent for urgent spoliatory relief, the High Court of KwaZulu Natal issued a rule nisi, directing the Association to reactivate the First Respondent’s access cards and the biometric access of his family. The full court declared the Association’s rules regulating the speed limit within the Estate invalid and unlawful. The Association appealed the order of the full court to the Supreme Court of Appeal (“SCA”). The appeal was concerned with the lawfulness of rules 7.1.2 and 7.3.2. Those rules provide that:

“7.1.2   The speed limit throughout [the estate] is 40 km/h. Any person found driving in excess of 40 km/h, will be subject to a penalty. The presence of children and pedestrians as well as many undomesticated animals such as buck, monkeys, mongoose, leguans and wild birds means that drivers need to exercise additional caution when using the roads.

7.3.2     Operating any vehicle in contravention of the National Road Traffic Act within [the estate] is prohibited.”

The SCA had to decide whether the Estate roads are public roads for purposes of the National Road Traffic Act 93 of 1996 (“the Act”). A public road is defined in Section 1 of the Act as:

“any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access….”

Applying the test of whether a section of the public at least commonly uses the area or has a right of access thereto, the SCA held that the roads within the Estate are not public roads. This was based on the fact that the Estate is enclosed by a high fence topped with electrified security wiring and access to the Estate is strictly controlled. The general public therefore does not have access to the roads within the Estate.

The court regarded the relationship between the Association and the Respondents as contractual in nature. The Respondents became members of the Association by purchasing property within the Estate and agreed to be bound by its rules. Third parties can only gain access to the Estate with prior consent of the owner concerned. In terms of clause 21.2 of the MOI the owner will be responsible for any breach of the conduct rules by the invitee of that owner. Clause 21.2 of the MOI provides that:

“In the event of any breach of the conduct rules for residents by any Lessees of Units, guests or invitees, authorised representatives or any other duly authorised person such breach shall be deemed to have been committed by the Member and the Directors shall be entitled to take such action as they may deem fit against the responsible Member.”

No sanction is therefore imposed on the third party, because the rules are only enforceable between the contracting parties and not on the public at large. The SCA therefore set aside the judgment of the full court of the High Court of KwaZulu Natal, holding that the rules are private and the Association is not usurping the functions of the recognised authorities or contravening the provisions of the Act. The Association did not have to seek and obtain permission from the MEC or the local municipality to enforce the rules regulating the speed limit within the Estate. The appeal therefore succeeded.

The effect of this SCA judgment is that the home owners’ association of a private residential estates can legally enforce rules regulating the speed limit within the estate against its members, also where a third party as guest or invitee of a member contravened the rules, and not the member itself.